Roach & Ors v Home Office

Costs incurred in attending and participating in an inquest may be recoverable as costs incidental to subsequent civil proceedings. There is no absolute rule excluding costs incurred in an earlier, separate proceeding. Recoverability depends on the circumstances and is governed by the wide discretion under section 51 of the Supreme Court Act 1981.

The costs judge must assess whether the work was relevant and useful to the civil claim, and whether the costs were reasonably and proportionately incurred. The purpose of attending the inquest is relevant but not decisive. An equal division based solely on dual purposes is impermissible. Exceptional legal aid funding for the inquest does not prevent recovery, although double payment is prohibited.

These conjoined costs appeals concerned civil claims arising from two deaths in prison custody. The deceaseds’ relatives were legally represented at lengthy inquests and subsequently settled civil claims against the Home Office. Their bills included substantial costs attributable to attendance and participation at the inquests.

In Roach, the Senior Costs Judge allowed one-half of the inquest costs before further reductions. The receiving parties appealed that division, while the Home Office cross-appealed on the ground that no inquest costs were legally recoverable. In Matthews, a Deputy Costs Judge held that the costs were potentially recoverable notwithstanding exceptional legal aid funding, and the Home Office appealed.

The central questions were whether inquest costs could constitute costs of and incidental to later civil proceedings under section 51 of the Supreme Court Act 1981, how such costs should be assessed, and whether public funding affected their recoverability.

1. Disposition. The Roach claimants’ appeal was allowed and the Home Office’s cross-appeal was dismissed. The Home Office’s appeal in Matthews was also dismissed. The Roach assessment was restored to the Senior Costs Judge for reconsideration.

2. The wide language of section 51 of the Supreme Court Act 1981 did not support an absolute rule that costs incurred in one proceeding could never be recovered as costs incidental to another. The jurisdictional requirement remained that the costs must genuinely be of and incidental to the civil proceedings. The paying party was protected by the costs judge’s evaluative powers concerning relevance, reasonableness and proportionality.

3. The approach in The Bowbelle [1997] 2 Lloyd’s Rep 196 was correct. Reasonable costs of attending or participating in an inquest may be recovered where sufficiently connected with the subsequent civil claim. The principles in Re Gibson’s Settlement Trusts [1981] 1 Ch 179 required consideration of whether the work proved useful and of service, was relevant to an issue, and was attributable to the paying party’s conduct. Each case depended on its own circumstances.

4. The authorities relied upon by the Home Office did not establish a categorical prohibition. Wright v Bennett [1948] 1 KB 601 concerned costs already disallowed in proceedings capable of determining them. The Aiden Shipping and Envoy Farmers decisions concerned costs belonging to separate, dominant proceedings rather than subordinate work incidental to the action. Contractreal Ltd v Davies [2001] EWCA Civ 928 likewise turned on whether the earlier costs were subordinate, and did not adopt the proposed absolute rule.

5. The purpose of a party’s attendance was relevant but could not determine recoverability or justify a percentage division by itself. It was necessary to distinguish the purpose of the inquest from the purpose and utility of attending it. The Senior Costs Judge’s equal division in Roach, based solely on two supposed purposes, could not stand, particularly after finding that the subject matter of the inquest and civil claim was virtually identical.

6. Exceptional legal aid funding for the inquest did not alter the governing principle. It did not determine the purpose, relevance or utility of attendance for the later civil claim. Double recovery remained prohibited because the solicitors would have to reimburse the Legal Services Commission to the extent of any overlapping recovery.

7. Where antecedent costs were very large relative to the damages or direct civil costs, proportionality required careful consideration under the Civil Procedure Rules. If the costs were disproportionate, only costs necessarily incurred and reasonable in amount could be allowed. The court declined to issue further guidelines because the statutory discretion was best applied to the facts of each case.

• High Court (Queen’s Bench Division): The Roach claimants’ appeal was allowed, the Home Office’s cross-appeal was dismissed, and the Home Office’s appeal in Matthews was dismissed. The Roach assessment was restored to the Senior Costs Judge.
• Supreme Court Costs Office — Roach: Master Hurst held on 29 May 2008 that one-half of the inquest costs was recoverable, subject to further reductions. He granted both sides permission to appeal on the recoverability and extent of those costs.
• Supreme Court Costs Office — Matthews: Deputy Master Rowley held on 19 November 2007 that inquest representation costs were potentially recoverable and that exceptional public funding did not prevent recovery. Henriques J granted the Home Office permission to appeal on 24 April 2008.